Arizona Eagletarian

Arizona Eagletarian

Thursday, March 5, 2015

Did the Framers really intend to guarantee Republicanism as basis for American government?

Maybe it was because the lawsuit didn't focus on the Guarantee Clause, but I was disappointed that the 18th century understanding of Republicanism was not mentioned during Monday's oral arguments in AZ Legislature v the Voters of Arizona.

Though Wikipedia is diligent about presenting topics with neutral language, the Heritage Foundation isn't widely understood to be neutral about much of anything. From Wikipedia,
The United States shall guarantee to every State in this Union a Republican Form of Government, [...]
This clause, sometimes referred to as the Guarantee Clause, has long been at the fore-front of the debate about the rights of citizens vis-à-vis the government. The Guarantee Clause mandates that all U.S. states must be grounded in republican principles, such as consent of the governed. By ensuring that all states must have the same type of government (a republic), the Guarantee Clause is one of several portions of the Constitution which mandates symmetric federalism between the states.
The Constitution does not explain what exactly constitutes a republican government. There are however, several places within it where the principles behind the concept are articulated. Article Seven, the last and shortest of the Constitution's original articles, stipulated that the Constitution, before it could become established as the "Law of the Land", must obtain the consent of the people by being ratified by popular conventions within the several states. Additionally, as it required the ratification of only nine states in order to become established, rather than the unanimous consent required by the Articles of Confederation, the Constitution was more republican, as it protected the majority from effectively being ruled or held captive by the minority.
On the other hand, the unabashedly right-wing Heritage Foundation, actually addresses some of the ambiguities, for example,
Participants in the Constitutional debate of 1787–1788 expressed varying views over exactly what constituted the "Republican Form" of government. However, there was a consensus as to three criteria of republicanism, the lack of any of which would render a government un-republican.
The first of these criteria was popular rule. The Founders believed that for government to be republican, political decisions had to be made by a majority (or in some cases, a plurality) of voting citizens. The citizenry might act either directly or through elected representatives. Either way, republican government was government accountable to the citizenry...
Clearly, most (if not all) of the pundits writing about the case in national or local news outlets have completely missed this most salient of points, which is very much at the heart of the issue.

The Heritage Foundation is hardly a Progressive leaning organization. This point should resonate with the conservative wing of the Roberts court. If it does not, then it will have exposed itself as a brazen tool of the Kochtopus rather than the nonpartisan judicial body it's supposed to be.

In previous posts, I have called attention to the fact that the Legislature's case is most assuredly at cross purposes to and with the Republicanism as understood and intended by the Framers.
Republicanism shifted the political paradigm to recognize the citizen as sovereign. The People's Sovereignty.
Popular sovereignty or the sovereignty of the people is the principle that the authority of the government is created and sustained by the consent of its people, through their elected representatives (Rule by the People), who are the source of all political power. It is closely associated with republicanism and social contract philosophers such as Thomas Hobbes, John Locke and Jean-Jacques Rousseau. Popular sovereignty expresses a concept and does not necessarily reflect or describe a political reality.[a] It is usually contrasted with the concept of parliamentary sovereignty, and with individual sovereignty. The people have the final say in government decisions.
Benjamin Franklin expressed the concept when he wrote, "In free governments, the rulers are the servants and the people their superiors and sovereigns".
Redistricting Commission counsel as well as pretty much all of the IRC supporting amicus briefs completely missed this point. It goes to the very heart of the legitimacy of American government and of the claims being made by Andy Biggshot, Andy Toxin and (toxin's successor) David Gowan.

Other references that cut directly to the bone on this issue include Creation of the American Republic by historian Gordon S. Wood and American Sovereigns by emeritus law professor Christian G. Fritz (who also has been published by the Heritage Foundation and holds a Ph.D. in history).

Now, it may have been an unfortunately monumental missed opportunity by many people to have failed to address this in briefs and in the oral arguments, but my study of the issue leads me to believe this is not the end of the story.

The Roberts court has faced and right now faces some high profile tests of its own legitimacy. I believe Chief Justice John Roberts is aware of that likely crisis, as are his colleagues.

In 2010, UC Davis law professor Christopher Elmendorf wrote a paper (chapter in a book) on Empirical Legitimacy and Election Law. In it, Elmendorf begins,
Worries about public confidence in the basic institutions of the political order have been a recurring theme of the Supreme Court’s constitutional election law jurisprudence. They seem to inform the Court’s articulation of constitutional rights; its understanding of the state interests that may justify burdens on such rights; and the development of prudential limitations on judicial involvement in electoral disputes, such as the political question doctrine. To date, however, the Court’s confidence-minded decisions have turned entirely on judicial guesswork about the functional relationships of interest.
The Court has simply assumed, for example, that campaign-contribution restrictions will inspire confidence among citizens who would otherwise believe the electoral process corrupted by moneyed interests. The Court has also relied on rank conjectures about the consequences of perceived corruption of the electoral process... The jurisprudence of public confidence is on a collision course with recent developments in political science. Findings from new survey research cast doubt on some of the Supreme Court’s most important conjectures, while also hinting at the possibility that seemingly unexceptional features of the electoral practices may prove constitutionally vulnerable – if the Court is serious about the idea that constitutional political rights derive their shape in part from what the citizenry deems important to the legitimacy of the political order.
The first part of this chapter examines the role of public confidence and related ideas in the Supreme Court’s election law jurisprudence, and concludes with some thoughts on the normative force of positive (empirical) legitimacy as a criterion for judicial decision in constitutional cases. The second part reviews political science findings on the relationship between electoral arrangements and empirical legitimacy. [...]
This part begins with a look at the rhetoric of legitimacy and public acceptance in constitutional election cases. I then address the Court’s concern for the judiciary’s reputation as impartial and politically neutral. I conclude with some observations about the normative pull of positive legitimacy in the adjudication of constitutional election law disputes.
Legitimacy and the Appearance of the Electoral Process
Explaining his vote to stay the Florida recount following the presidential election of 2000, Justice Scalia wrote:
"The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires (Bush v. Gore 2000, 1047)." 
This statement is unmatched for the vigor and transparency with which it embraces “public acceptance” as a guiding norm for judicial superintendence of the electoral process...
This issue also seems to highlight the role of today's (overly consolidated) corporate media (not limited to Fox News) as a tool of plutocratic interests as opposed to the popular legitimacy of debates on political topics.

The bottom line is that, in my view, predictions of the demise of independent redistricting are stupendously premature. There is absolutely ZERO legitimacy, from the 18th Century understanding and view of Republicanism, in what the Arizona Legislature has done and is doing with this lawsuit.

1 comment:

  1. Good post, you raise an interesting point. Lets hope the Supreme Court thinks about it before making their decision.